Esquire Investments, Inc. v. Summers ( 2023 )

509
Argued and submitted June 21, 2023, affirmed August 16, 2023
ESQUIRE INVESTMENTS, INC.,
and George Gebrayel,
Plaintiffs-Appellants,
v.
Rebecca SUMMERS,
fka Rebecca Vaage,
and Justin Carter,
Defendants-Respondents.
Yamhill County Circuit Court
19CV53808; A178269
536 P3d 1081
This case arises from a land dispute. Plaintiffs filed the action below seek-
ing, among other things, a declaratory judgement determining whether a public
easement exists over defendant’s property. On appeal, plaintiffs raise two assign-
ments of error: First, plaintiffs assert that the trial court erred in concluding
that defendant’s property is not subject to a public easement. Second, plaintiffs
assert that the trial court erred in concluding that, even if the defendant’s prop-
erty is subject to a public easement, the easement was not accepted by the county
and, therefore, never took effect. Held: The trial court did not err in concluding
that defendant’s property is not subject to a public easement. Plaintiffs’ primary
argument on appeal, based on the doctrine of merger, was not preserved, and
there is a substantial question whether the 1979 warranty deed on which plain-
tiffs’ merger argument depends unambiguously subjected the property to an ear-
lier easement that the developer granted, without authority, during the pendency
of a land sale contract. The Court of Appeals accordingly rejected plaintiffs’ first
assignment of error and, therefore, did not need to reach the second.
Affirmed.
Cynthia L. Easterday, Judge.
Nathan R. Morales argued the cause for appellants. Also
on the briefs were Rachelle D. Collins and Stoel Rives LLP.
Billy M. Sime argued the cause for respondent Rebecca
Summers. Also on the brief was Parks, Bauer, Sime, Winkler
& Walker, LLP.
No appearance for respondent Justin Carter.
Before Shorr, Presiding Judge, and Pagán, Judge, and
Kistler, Senior Judge.
510 Esquire Investments, Inc. v. Summers
KISTLER, S. J.
Affirmed.
Cite as 327 Or App 509 (2023) 511
KISTLER, S. J.
Plaintiffs appeal a limited judgment declaring that
defendant’s property is not subject to a public easement but
is subject to a separate, private easement that does not ben-
efit plaintiffs.1 We affirm the trial court’s judgment.
Plaintiffs and defendant own adjoining parcels of
land in Yamhill County.2 Over the years, disputes have
arisen between them. Plaintiffs filed this action alleging,
among other claims, a request for a declaratory judgment
“determining the rights and liabilities” of the parties.
Specifically, plaintiffs sought a declaration that they have
an easement over defendant’s property. On appeal, plaintiffs
rely primarily on the doctrine of merger to support their
claimed easement. They contend that, when defendant’s
predecessor in interest paid off the amount owing under a
land sale contract and accepted a 1979 statutory warranty
deed, that deed unambiguously established that the deeded
property was subject to a 1972 easement for a public road.
Defendant responds that plaintiffs failed to preserve their
merger claim. Before turning to the parties’ dispute, we first
describe the underlying historical facts. We then set out the
parties’ arguments at trial, describe the trial court’s ruling,
and address plaintiffs’ merger claim.
In 1968, Three Creeks Ranch sought to subdivide
approximately 260 acres of land it owned in Yamhill County
into 50 roughly five-acre lots. It sold three lots in the pro-
posed subdivision before it applied for approval of its subdi-
vision plat in June 1968. The next month, the county denied
Three Creeks’ application. Despite the county’s denial,
Three Creeks entered into a land sale contract with defen-
dant’s predecessor in interest in November 1968.
Among other things, the 1968 land sale contract
provided that, when defendant’s predecessor in interest paid
the purchase price in full, Three Creeks would deliver a
“good and sufficient deed” conveying the described premises
1
Plaintiffs brought this action against two defendants, Summers and
Carter. Because the limited judgment does not adjudicate Carter’s rights, the
term “defendant” refers to Summers.
2
For the most part, the historical facts are undisputed. To the extent a dis-
pute exists, we state the facts consistently with the trial court’s judgment.
512 Esquire Investments, Inc. v. Summers
free and clear of all liens except (1) any lien or encumbrance
created by the purchaser and (2) “Deed restrictions and res-
ervations set forth in Exhibit 1 attached [to the land sale con-
tract] and by this reference incorporated herein.” The land
sale contract provided further that Three Creeks “reserves
unto itself an easement 50 feet in width for the purpose of
locating utilities, including but not limited to water, light,
sewage and drainage, and for the purpose of providing a
road for ingress and egress to other lots located within the
tract being developed by [Three Creeks].”
The “deed restrictions and reservations” set out in
Exhibit 1 to the land sale contract are essentially two-fold.
First, they parallel one of the provisions in that contract;
they reserve 50-foot easements for utilities and easements
for ingress and egress to be located, as reasonably neces-
sary, by a building committee. Second, they include terms
that are often found in codes, covenants, and restrictions
governing subdivisions; they establish a building commit-
tee, require that the plans for any building be approved by
the committee, provide set-back requirements, and impose
similar restrictions on the use and enjoyment of the prop-
erty located within the proposed subdivision.
In 1979, defendant’s predecessor in interest paid
the purchase price in full, and Three Creeks’ successor,
Southridge Development Co., recorded a statutory form war-
ranty deed for the property that defendant now owns. After
describing the property, the 1979 warranty deed recites
that the property “is free from all encumbrances except
[i]t is subject to a 50.0 foot road easement along the North
line of the above described tract, and deed restrictions and
reservations.”
Between the time that Three Creeks and defen-
dant’s predecessor in interest entered into the 1968 land
sale contract and the time that Southridge recorded the
1979 warranty deed, either Three Creeks or Southridge
recorded three deeds that relate to defendant’s property
and that give rise to the parties’ arguments in this case. We
describe those deeds briefly.
First, in 1970, Three Creeks recorded a deed des-
ignating a 50-foot-wide easement for “roadway purposes”
Cite as 327 Or App 509 (2023) 513
that runs along the northern part of defendant’s property
and that burdens and benefits four lots—defendant’s lot and
the three lots that Three Creeks sold before it applied for
approval of its subdivision plat in June 1968.3 The deed cre-
ating the 50-foot easement recites that Three Creeks and
the purchasers of the four lots agreed to the easement.
Second, in 1972, Southridge recorded a deed cap-
tioned “Deed Reservations and Restrictive Covenants.” The
contents of that deed are essentially identical to the “deed
restrictions and reservations” that were attached to and
incorporated in the 1968 land sale contract between Three
Creeks and defendant’s predecessor in interest.
Third, in 1972, Southridge recorded a deed grant-
ing a 60-foot-wide “right-of-way for a public road through its
lands located in Yamhill County[.]” The deed describes six
lots over which the 60-foot public road runs. One of those
lots is the property that defendant now owns.4
With that factual background in mind, we describe
the parties’ arguments at trial and the trial court’s ruling.
We begin by setting out defendant’s trial arguments, which
provide context for understanding the arguments that
plaintiffs made at trial.
Relying on the doctrine of equitable conversion,
defendant argued at trial that, when Three Creeks and
defendant’s predecessor in interest entered into the 1968
land sale contract, defendant’s predecessor in interest was
regarded as the owner of the property and that the legal title
that Three Creeks and its successor Southridge retained
served only as a security interest in case defendant’s prede-
cessor in interest failed to pay the full amount of the pur-
chase price. It followed, defendant argued to the trial court,
that Southridge lacked any interest in defendant’s property
in 1972 that would permit it to impose a right of way for
a public road over that property. Alternatively, defendant
3
The 50-foot easement lies wholly within defendant’s property before it con-
tinues through the three adjacent properties that it benefits and burdens.
4
The trial record contains little relevant information about plaintiffs’ prop-
erty other than that plaintiffs have owned it since 1987 and that it is adjacent to
defendant’s property. Neither the deed to plaintiffs’ property nor their chain of
title is part of the trial record.
514 Esquire Investments, Inc. v. Summers
argued that, even if Southridge had authority to grant an
easement over defendant’s property in 1972, the public road
easement that Southridge sought to grant became effective
only if the county accepted it, which it never did. Finally,
defendant contended that the 50-foot easement created by
the 1970 deed was a separate, private easement that only
burdened and benefitted the four lots identified in that deed.
Plaintiffs raised various arguments in response.5
Plaintiffs’ trial counsel began by arguing that the 50-foot
easement created by the 1970 deed was not in fact a private
easement “but [was] rather a public right of way.” At vari-
ous points during trial, plaintiffs’ counsel appeared to con-
flate the 50-foot easement created by the 1970 deed with the
60-foot easement described in the 1972 deed and conclude
that, because the latter sought to create a right of way for a
public road, so did the former.6 At other points in plaintiffs’
argument, plaintiffs started from the premise that the 1972
deed created a public right of way over defendant’s property;
however, plaintiffs’ counsel never responded to defendant’s
argument that, as a result of the doctrine of equitable con-
version, Southridge lacked authority in 1972 to unilater-
ally impose that easement on defendant’s property. Rather,
plaintiffs’ counsel focused on the claim that the county did
not need to accept the 1972 right of way for a public road
for it to become effective. Finally, plaintiffs’ counsel argued
that plaintiffs had either an implied easement or an ease-
ment by necessity over defendant’s property.
During closing arguments, the trial court asked
counsel several times for the equivalent of a special verdict
form that would specify the issues that the parties wanted
the court to decide. In response to that request, plaintiffs’
counsel identified one additional issue: He argued that,
even if the 50-foot easement was private rather than public,
5
Plaintiffs did not file a trial memorandum. Moreover, their counsel waived
opening statement and made only a brief closing argument. We glean plaintiffs’
arguments from their counsel’s colloquies with the court during trial and their
counsel’s closing argument. We note that the law firm that represented plaintiffs
at trial differs from the firm that currently represents them on appeal.
6
The descriptions of the two easements overlap in part but are not cotermi-
nous. The 50-foot easement runs along the northern boundary of defendant’s
property but lies wholly within her property. The centerline of the 60-foot public
easement is described as running along defendant’s northern property line.
Cite as 327 Or App 509 (2023) 515
properties that were adjacent to the private easement but
not expressly benefitted by it should still be able to use it.
After the court asked defense counsel whether that issue
had been fully litigated, the court took that and the other
issues that the parties had identified under advisement.
The court issued a letter opinion resolving those
issues, which it later reduced to a limited judgment. In its
letter opinion, the court found that plaintiffs had failed to
prove that they had either an implied easement or an ease-
ment by necessity over defendant’s property. It also found
that the 1970 deed for a 50-foot easement created a private
easement over defendant’s property that benefitted only
the three lots identified in that deed; in doing so, it rejected
plaintiffs’ argument that adjacent landowners who were not
expressly benefitted by the 50-foot private easement could
use it. Finally, the court agreed with defendant’s legal argu-
ment that, once Three Creeks entered into the 1968 land
sale contract with defendant’s predecessor in interest, Three
Creeks and its successor Southridge held legal title to the
property in 1972, but it concluded that that interest was not
sufficient, standing alone, to permit Southridge to unilat-
erally impose a 60-foot “right-of-way for a public road” over
what is now defendant’s property. Additionally, the court
ruled that, even if Southridge had the authority in 1972 to
burden defendant’s property with an easement for a pub-
lic road, the easement never became effective because the
county did not accept it.
On appeal, plaintiffs raise two assignments of error.
Their first assignment of error is directed at the trial court’s
ruling that defendant’s property is not subject to the 60-foot
“right-of-way for a public road” described in the 1972 deed.
Their second is directed at the trial court’s ruling that,
even if defendant’s property is subject to a 60-foot ease-
ment for a public road, the easement never became effective
because the county did not accept it.7 Because we conclude
7
Plaintiffs do not argue on appeal, as they did at trial, that they had either
an implied easement or an easement by necessity over defendant’s property. They
do not contend that the 50-foot easement created by the 1970 deed is a public
easement, nor do they contend that, even if it is a private easement that benefits
specific lots, any adjacent property owner can use it. Finally, they do not argue
that Southridge could or did rely on the reservation in the “deed restrictions and
reservations” attached to the 1968 land sale contract to create the 1972 public
516 Esquire Investments, Inc. v. Summers
that plaintiffs’ first assignment of error is not well taken, we
need not reach their second assignment of error.
Plaintiffs raise alternative arguments in support of
their first assignment of error. Their primary argument is
based on the doctrine of merger and runs as follows. Plaintiffs
contend that the 1979 warranty deed unambiguously con-
veyed the property to defendant’s predecessor in interest
subject to the “right-of-way for a public road” described in
the 1972 deed. Plaintiffs reason that, when defendant’s pre-
decessor in interest accepted the 1979 warranty deed, that
deed superseded whatever rights defendant’s predecessor in
interest had (or Southridge lacked) under the 1968 land sale
contract. Specifically, they contend that the parties’ rights
and obligations under the 1968 land sale contract “merged”
into the unambiguous terms of the 1979 warranty deed
that defendant’s predecessor in interest accepted. Cf. City of
Bend v. Title & Trust Co., 134 Or 119, 127, 289 P 1044 (1930)
(explaining that the parties to a contract for the sale of land
may agree to change the obligations arising under that con-
tract and that, under the common law doctrine of merger,
“acceptance of a deed varying from a contract may indicate
such an amendment of the original contract[.]”).8
We question, as an initial matter, whether the 1979
statutory warranty deed unambiguously subjected defen-
dant’s property to the public right of way described in the
1972 deed. As noted above, after describing the deeded
property, the 1979 warranty deed recited that the property
“is free from all encumbrances except [i]t is subject to a
50.0 foot road easement along the North line of the above
easement; that is, they do not argue that the authority Three Creeks reserved in
the 1968 deed to create reasonably necessary 50-foot easements for the ingress
and egress of the property owners within the subdivision authorized Southridge
to create a 60-foot public easement in 1972 that anyone and everyone could use
for any reason.
8
Plaintiffs’ primary argument does not take issue with defendant’s con-
tention that Southridge lacked authority to unilaterally impose a 60-foot public
easement on defendant’s property in 1972. Rather, as we understand plaintiffs’
primary argument, it turns on the proposition that whatever lack of authority
that Southridge may have had in 1972 to unilaterally encumber defendant’s
property is immaterial because defendant’s predecessor in interest accepted the
1979 warranty deed, which unambiguously imposed the “right of way for a public
road” described in the 1972 deed on the deeded property. That much follows, they
contend, from the doctrine of merger.
Cite as 327 Or App 509 (2023) 517
described tract, and deed restrictions and reservations.”
Plaintiffs reason that the phrase “deed restrictions and
reservations” unambiguously refers to previously recorded
deeds reserving interests in defendant’s property, such as
the 1972 deed imposing a 60-foot “right-of-way for a public
road” over defendant’s property, and that defendant’s prede-
cessor in interest took the deeded property subject to that
exception.
Textually, plaintiffs’ interpretation of the phrase
“deed restrictions and reservations” in the 1979 warranty
deed is problematic. If plaintiffs are correct that that generic
phrase excepts all previously recorded encumbrances, then
the first exception that the 1979 warranty deed notes—for
a “50.0 foot road easement”—would be redundant. After all,
Three Creeks had recorded a deed in 1970 creating a 50-foot
private easement along the north line of defendant’s prop-
erty. And plaintiffs never explain why, if their reading of
the phrase “deed restrictions and reservations” in the 1979
warranty deed is correct, that generic exception would not
include both the 50-foot private easement created by the
1970 deed and the 60-foot public easement described in the
1972 deed—rendering the specific exception for the 50-foot
easement in the 1979 warranty deed unnecessary. To put
the point a different way, why would Southridge have specif-
ically excepted the 1970 50-foot private easement from the
property deeded to defendant’s predecessor in interest but
buried an exception for the 1972 60-foot public easement in
a generic phrase like “deed restrictions and reservations”?
Not only does plaintiffs’ reading of the phrase “deed
restrictions and reservations” in the 1979 warranty deed
result in textual anomalies, but an equally plausible—and
perhaps more persuasive—reading is possible. As noted
above, the 1968 land sale contract provided that, on receiv-
ing the full purchase price, the seller would deliver to defen-
dant’s predecessor in interest a good and sufficient deed
free and clear of all liens except (1) any lien or encumbrance
created by the purchaser and (2) “Deed restrictions and res-
ervations set forth in Exhibit 1 attached [to the land sale
contract] and by this reference incorporated herein.” The
two exceptions set out in the 1979 warranty deed parallel
518 Esquire Investments, Inc. v. Summers
the two exceptions identified in the 1968 land sale contract.
The first exception in the 1979 warranty deed for the 50-foot
roadway easement was created by defendant’s predecessor
in interest when they agreed to the 1970 deed creating that
easement. And the second exception in the 1979 warranty
deed uses the same phrase “deed restrictions and reserva-
tions” that the second exception in the 1968 land sale con-
tract does.
The only difference between the two identically
worded phrases in the 1968 land sale contract and the 1979
warranty deed is that the 1968 land sale contract defines
what the phrase “deed restrictions and reservations” means.
It means those restrictions and reservations set out in the
attachment to the 1968 contract. It does not mean all previ-
ously recorded deeds reserving an interest in the property,
as plaintiffs contend. And defendant’s predecessor in inter-
est reasonably could have understood that the phrase “deed
restrictions and reservations” in the 1979 warranty deed
meant nothing more or less than what it meant in the 1968
land sale contract, or so the trial court could find. Cf. Sea
River Properties, LLC v. Parks, 355 Or 831, 845, 333 P3d 295
(2014) (quoting Wirostek v. Johnson, 266 Or 72, 75, 511 P2d
373 (1973), for the proposition that, “[i]n interpreting a deed,
a court must ‘ascertain and give effect to the intentions of
the parties, as evidenced by the language of the instrument
and the circumstances attending its execution’ ”).
Ultimately, however, the difficulty with plaintiffs’
claim that the unambiguous terms of the 1979 warranty
deed superseded the parties’ rights under the 1968 land sale
contract is the one that defendant notes: Plaintiffs failed to
preserve that issue in the trial court. Plaintiffs raised a
variety of issues at trial. But they never told the trial court
that, in their view, the phrase “deed restrictions and reser-
vations” in the 1979 warranty deed unambiguously referred
to all previously recorded deeds reserving an interest in the
property. They never argued that, even if Southridge lacked
authority to unilaterally impose an easement on defendant’s
property in 1972, the phrase “deed restrictions and reser-
vations” in the 1979 warranty deed was so clear that, when
defendant’s predecessor in interest accepted the statutory
Cite as 327 Or App 509 (2023) 519
warranty deed in 1979, the property became encumbered
with the 1972 public easement. And plaintiffs never men-
tioned the doctrine of merger nor gave defendant fair notice
that she needed to raise any defenses that she might have to
merger, such as fraud or mistake, in the trial court. See City
of Bend, 134 Or at 129 (listing fraud and relievable mistake
as defenses to merger).
As a result, the trial court had no occasion to decide
whether the phrase “deed restrictions and reservations” in
the 1979 statutory warranty deed is unambiguous, as plain-
tiffs now argue. Nor did it consider, if the phrase is ambigu-
ous, what it means or how any ambiguity might affect plain-
tiffs’ merger claim. Finally, plaintiffs never gave defendant
reason to argue or the trial court to consider whether, if
plaintiffs’ interpretation of the generic phrase “deed restric-
tions and reservations” in the 1979 warranty deed were cor-
rect, the rules governing statutory warranty deeds would
preclude plaintiffs’ reliance on the 1972 easement. See
ORS 93.850(2)(c)(B) (requiring that any encumbrance to
a statutory warranty deed be “specifically set forth on the
deed”); cf. Freeborn v. Dow/Western Title and Escrow Co., 322
Or App 695, 705-06, 522 P3d 549 (2022), rev den, 370 Or
822 (2023) (explaining that the rules that govern statutory
warranty deeds, which were enacted in 1973, were intended
to simplify and codify the doctrine of merger).
The court explained in Peeples v. Lampert, 345 Or
209, 220, 191 P3d 637 (2008):
“Preservation rules are pragmatic as well as prudential.
What is required of a party to adequately present a conten-
tion to the trial court can vary depending on the nature
of the claim or argument; the touchstone in that regard,
ultimately, is procedural fairness to the parties and to the
trial court.”
In our view, the arguments that plaintiffs raised at trial
never gave the trial court or defendant fair notice of the
merger issue that plaintiffs are now raising on appeal. That
is especially true when the trial court asked the parties sev-
eral times during closing argument for a roadmap identi-
fying the issues that they wanted the court to decide, and
plaintiffs never told the trial court that it needed to decide
520 Esquire Investments, Inc. v. Summers
whether, as a result of the doctrine of merger, the phrase
“deed restrictions and reservations” in the 1979 statutory
warranty deed unambiguously subjected defendant’s prop-
erty to the 1972 public easement.
Plaintiffs reason, however, that, under State v. Hitz,
307 Or 183, 766 P2d 373 (1988), preservation required only
that they argue that defendant’s property was subject to the
1972 public easement, which they did. Having presented
that generic argument to the trial court, they contend that
preservation did not require them to identify a particular
source for their claim, such as the doctrine of merger, or to
make a specific argument, such as that the phrase “deed
restrictions and reservations” in the 1979 warranty unam-
biguously referred to the 1972 public easement and that, by
accepting the 1979 warranty deed, defendant’s predecessor
in interest subjected defendant’s property to the 1972 public
easement.
The three categories that Hitz identified—issues,
sources, and arguments—can provide helpful guidance
in determining whether a party has preserved an issue.
However, those three categories are not self-defining, and
what one party reasonably may describe as an issue another
reasonably may describe as a theory or an argument. In
Peeples, the court cited the three categories identified in
Hitz and explained that the “touchstone” in determining
whether a party has preserved an issue in the trial court
is “procedural fairness to parties and the court.” Peeples,
345 Or at 220. Having identified that touchstone, the court
avoided using categories such as “issue,” “source,” and
“argument” to determine preservation. Rather, it explained
that the touchstone it identified controlled whether either a
“claim” or an “argument” had been preserved. Id. Following
Peeples, we conclude that plaintiffs failed to preserve their
claim that, under the doctrine of merger, the 1979 warranty
deed encumbered defendant’s property with the right of way
for a public road described in the 1972 deed.
We turn to plaintiffs’ alternative argument in sup-
port of their first assignment of error. In their reply brief,
plaintiffs note that, between the time defendant’s prede-
cessor in interest entered into the 1968 land sale contract
Cite as 327 Or App 509 (2023) 521
and the time that the purchase price was paid in full in
1979, Three Creeks and its successor Southridge held legal
title to the property. They reason, that, “because Southridge
had legal title to the property in 1972, it necessarily had
the legal authority to create a public right of way across the
property during that year.”
Plaintiffs, however, cite no authority for that propo-
sition, and their basis for asserting it is not completely clear.
The court has long recognized that the purchaser in a land
sale contract “is looked upon and treated as the owner of the
land[.]” City of Reedsport v. Hubbard et ux., 202 Or 370, 390,
274 P2d 248 (1954). The seller, by contrast, retains a limited
interest: “(1) the right to receive contract payments, and (2) the
legal title in the property securing the purchaser’s obliga-
tion to make the contract payments, with the concomitant
possibility of resuming general ownership of the land upon
default.” Bedortha v. Sunridge Land Co., Inc., 312 Or 307,
311, 822 P2d 694 (1991) (internal quotation marks omitted).
Applying the doctrine of equitable conversion, the
court has recognized that the legal title that the seller
retains is often viewed as an interest in personal, not real,
property. See Panushka v. Panushka, 221 Or 145, 150, 349
P2d 450 (1960) (declining to describe the “naked legal title,
which the [seller] holds in trust as security for the payment
of the purchase money” as an interest in land that was sub-
ject to descent on the seller’s death). However, three years
after it decided Panushka, the court cautioned that the doc-
trine of equitable conversion does not automatically apply
with full force in every land sale contract. Heider v. Dietz,
234 Or 105, 112, 380 P2d 619 (1963). Rather, there are cate-
gorical exceptions to the doctrine’s application, such as when
the land sale contract is not specifically enforceable, id., or
when, as in Heider, treating the seller’s interest as personal
property would cut off the rights of a third-party judgment
creditor to “levy upon and sell any interest [the seller] may
have had in the security represented by the [seller’s] legal
title * * *.” Id. at 116; see also May v. Emerson, 52 Or 262, 96
P 454, reh’g den, 96 P 1065 (1908). In the latter instance,
the seller’s legal title is regarded as an interest in real prop-
erty to which the third-party’s recorded judgment lien will
522 Esquire Investments, Inc. v. Summers
automatically attach. Bedortha, 312 Or at 314; Heider, 234
Or at 116.
In their reply brief, plaintiffs have not explained
why the land sale contract between Three Creeks and
defendant’s predecessor in interest is not subject to the doc-
trine of equitable conversion. Nor have they explained why,
even if the legal title that Southridge retained is regarded
as an interest in real property, it was sufficient to permit
Southridge to unilaterally encumber the purchaser’s inter-
est in the property with the 1972 public easement. See
Bedortha, 312 Or at 311 (describing the legal title that the
seller retained as a security interest in the property that
permitted the seller to “resum[e] general ownership of the
land upon [the purchaser’s] default”).9 Plaintiffs’ arguments
provide no reason to disturb the trial court’s judgment.
Affirmed.
9
Plaintiffs raise one more point in their reply brief. They contend that defen-
dant waited “too long” to argue that Southridge lacked authority to unilaterally
burden defendant’s property in 1972 with 60-foot right of way for a public road. To
the extent that plaintiffs are asserting laches or perhaps a statute of limitations
claim, they failed to raise those claims at trial.